Midnight Watch: Clean Energy & Energy Efficiency

Waiving Energy Efficiency Test Procedures

In May 2019, the Energy Department proposed changes to the process by which appliance manufacturers can seek waivers from Energy Policy and Conservation Act (EPCA)-mandated energy efficiency testing procedures. Under the proposal, the Energy Department would initially grant such waivers by default without review, based on a simple notification from a manufacturer that they do not intend to follow the established test procedures. In addition, if the Energy Department eventually denies a waiver following further review, the manufacturer would be allowed to continue avoiding required compliance testing for an additional 180-day grace period. These changes would effectively allow any company to manufacture and sell non-compliant products for at least half a year, and would burden consumers and businesses with costly long-lasting products that do not meet energy efficiency standards, as state attorneys general warned in comments filed in September 2019.

🔴NEW DEVELOPMENTS: The Energy Department published the final rule on December 11. A coalition of 15 state attorneys general challenged the final rule on January 19.

Efficiency Carve-Out for Fast-Cycle Washers and Dryers

In August 2020, the Energy Department proposed to establish a new product class for fast-cycle clothes washers and dryers, in order to exempt them from energy efficiency standards under the EPCA. Currently, all clothes washers and dryers are subject to energy efficiency standards. The Energy Department’s proposal would create a category of washers and dryers to carve out from the current standards. These appliances would be subject to other standards only if the Energy Department undertook and finalized an additional rulemaking. Such a relaxation of standards violates EPCA’s anti-backsliding provision that prohibits the department from establishing a standard that increases maximum allowable energy use, as state attorneys general warned in comments filed in October 2020.

🔴NEW DEVELOPMENTS: The Energy Department published the final rule on December 16. A coalition of 15 state attorneys general challenged the final rule on January 19.

Special Treatment for Furnaces and Water Heaters

In July 2019, the Energy Department proposed an interpretative rule for energy efficiency standards for residential gas furnaces and commercial hot water heaters. The proposal asserted that non-condensing combustion technology products and equipment are “performance characteristics” that are exempt under EPCA because adopting an energy efficiency standard allegedly would result in the commercial unavailability of non-condensing combustion technology products and equipment in furnaces and hot water heaters. State attorneys general filed comments in September 2019 opposing the proposal on grounds that the Energy Department had correctly concluded in prior rulemakings that non-condensing combustion technology products and equipment are not “performance characteristics” under EPCA, and because the proposal would cost consumers billions of dollars in lost energy savings and increase carbon emissions by millions of metric tons.

In September 2020, after considering public comments on the July 2019 proposal, the Energy Department proposed a supplemental interpretative rule that would deem a residential gas furnace or commercial water heater’s compatibility with existing venting systems a “performance-related feature.” This interpretation of "feature" is inconsistent with EPCA, as state attorneys general noted in comments filed in September 2020.

🔴NEW DEVELOPMENT: The The Energy Department published the final rule on January 15.

Vineyard Wind Project: Final EIS and Permitting Decision

In June 2020, the Bureau of Ocean Energy Management (BOEM) issued a supplement to its December 2018 draft environmental impact statement for Vineyard Wind’s proposed 800-MW wind energy project off the coast of Massachusetts. In its supplement, BOEM expanded its analysis to evaluate cumulative impacts of the project and other reasonably foreseeable offshore wind energy facility projects in the Atlantic Outer Continental Shelf area, forecasting 22,000 megawatts of wind development along the East Coast. In July 2020, Massachusetts Attorney General Maura Healey filed comments noting the importance of the project to the state’s emissions reductions targets and transition to clean energy, and urging BOEM to expeditiously approve the project.

🔴NEW DEVELOPMENTS: On December 1, Vineyard Wind announced plans to switch the turbines used in the project. The Interior Department responded by terminating the federal review process for the project, in a notice published on December 16.

Changes to FERC’s Transmission Incentives Policy

In March 2020, the Federal Energy Regulatory Commission (FERC) proposed revisions to its electricity transmission incentives policy. Under Section 219 of the Federal Power Act, FERC establishes incentives-based, including performance-based, rate treatments for the development of reliable and affordable transmission projects. In June 2020, state attorneys general submitted multistate comments (and Virginia submitted state-specific comments) expressing concern that most aspects of FERC’s proposal would impede progress on needed projects for the rapidly changing grid, and would lead to unjust and unreasonable rates. FERC could finalize its revisions during the transition period. 

🔴NEW DEVELOPMENT: The proposal was struck from the agenda for FERC's open meeting on January 19.